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MARATHON STRUCTURED,
Plaintiff
v.
Defendants
___________________________________/
undersigned counsel and files this Objection and Motion to Strike Plaintiff’s Ex-
STRUCTED maintained that it was the owner of the subject Note and Mortgage.
entirely new party as plaintiff and seeks to change the entire party responsible for
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bringing the foreclosure.
not own or hold the note and mortgage it seeks to foreclosure as admitted by
8.. When naming an entirely new party to an action and dropping all
original parties, the appropriate process is to dismiss and refile the action. See
brings an action, but instead, the proper procedure in this event is to dismiss the
action without prejudice under rule 1.420(a)(1) and to refile it naming the proper
parties. Id.
distinguishable from the case at bar. First, this is not a case where the entity
suing and the entity that intended to sue were related companies functioning
through the same management structure. See e.g. Sexton v. Panning Lumber
Co., 260 So. 2d 898, 899, 903 (Fla. 4th DCA 1972). Nor is this a case where the
plaintiff sued under a fictitious name. See e.g. Royal Atlantic Health Spa, Inc. v.
B.L.N., Inc., 677 So. 2d 1385, 1386 (Fla. 4th DCA 1996). Third, this is not a case
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11. Naming two entirely different companies that do not share a close
alliance and that are completely separate and unrelated falls squarely outside of
to the Note and Mortgage which was subsequently transferred and assigned to
this motion to dismiss the Plaintiff=s Complaint, or in the alternative, for more
19. The Defendant is the owner of the property which is the subject of
this Complaint.
20. The Defendant request the Court dismiss this action pursuant to
Rule 1.210(a) and 1.140(7), because it appears on the face of the Complaint that
a person other than the Plaintiff is the true owner of the claim sued upon and that
the Plaintiff is not the real party in interest and is not shown to be authorized to
bring this action. In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr.
S.D. Fla. 1985) (Finding that “it is axiomatic that a suit cannot be prosecuted to
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foreclose a mortgage which secures the payment of a promissory note, unless
the Plaintiff actually holds the original note,” citing Downing v. First National Bank
of Lake City, 81 So. 2d 486 (Fla. 1955)). See also Davanzo v. Resolute
Insurance Company, et al., 346 So. 2d 1227, 1228 (Fla. 3d DCA 1977) (Holding
that “one who holds legal title to a mortgaged property is an indispensable party
because the complaint fails to attach any document to identify who or what
Defendant determine from the Plaintiff’s complaint upon what facts the Plaintiff is
claiming to be the real party in interest with standing to pursue this foreclosure
Procedure.
that is not the Plaintiff as the owner and holder of the mortgage and these
documents conflict with the Plaintiff’s allegations of material facts in the complaint
who the Plaintiff is or the plaintiff’s relationship to the Defendant, Audin Louis, or
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promissory note, including the failure to allege an assignment/endorsement of
which action may be brought to its complaint. The Plaintiff has attached a copy
25. Fla. R. Civ. P. Rule 1.310(b) provides that all exhibits attached to
a pleading shall be considered a part of the pleading for all purposes. It appears
on the face of Plaintiff’s Complaint that it is not the proper party to bring this
action.
owner of the subject note are inconsistent with the documents attached to the
not have the original promissory note. When exhibits are inconsistent with the
plaintiff’s allegations of material fact as to who the real party in interest is, such
allegations cancel each other out. Fladell v. Palm Beach County Canvassing
Bd., 772 So. 2d 1240, 1242 (Fla. 2000); Greenwald v. Triple D Properties, Inc.,
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Every action may be prosecuted in the name of
the real party in interest, but a personal representative,
administrator, guardian, trustee of an express trust, a party
with whom or in whose name a contract has been made for
the benefit of another, or a party expressly authorized by
statute may sue in that person=s own name without joining
the party for whose benefit the action is brought . . .
28. Plaintiff does not have standing to pursue this action. “Standing
with a legally cognizable interest which would be affected by the outcome of the
litigation.” Nedeau v. Gallagher, 851 So. 2d 214, 215 (Fla.1st DCA 2003).
29. “Standing encompasses not only the ‘sufficient stake’ definition, but
behalf of one who is recognized by the law and a ‘real party in interest,’ that is
‘the person in whom rests, by substantive law, the claim sought to be enforced.’”
Kumar Corp. v. Nopal Lines, 462 So. 2d 1178, 1183 (Fla. 3d DCA 1985).
judgment confirming its right to enforce the lost note as it fails to state a cause of
Note because Chapter 673 only applies to negotiable instruments. Plaintiff has
32. By failing to comply with Fla. R. Civ. P. 1.130(a), the Plaintiff can
not comply with Florida Statute § 673.3091. Even if Plaintiff could allege that the
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Note was a negotiable instrument and that § 673.3091, Fla. Stat. was applicable,
33. Fla. Stat. ' 673.3091 sets out the prerequisites for pleading a
claim for the enforcement of a lost, destroyed, or stolen instrument and allows:
34. The documents attached to the Complaint do not indicate that the
Plaintiff was ever entitled to enforce the instrument and therefore the Plaintiff can
not allege that it was entitled to enforce the note when the loss of possession
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and certain in the particulars identified hereinabove,
And for an award of attorney’s fees and for all other relief to which this Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded via
U.S. Mail to: Angela Vittiglio, Esq., MARSHALL C. WATSON, PA, 1800 NW 49 Street,
Ste: 120, Ft. Lauderdale, Fl 33309 and Justin B. Lightly, Esq., FLORIDA
FORECLOSURE ATTORNEYS PLLC, 601 Cleveland Street, Ste: 690, Clearwater, Fl
33755 this September 20, 2010.
By: ____________________________
Carol C. Asbury, Esq.
Florida Bar: 393665